Fury and Defence Force Retirement and Death Benefits Authority
[2005] AATA 382
•29 April 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 382
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2004/119
VETERANS' APPEALS DIVISION ) Re FRANK WAYNE FURY Applicant
And
DEFENCE FORCE RETIREMENT AND DEATH BENEFITS AUTHORITY
Respondent
DECISION
Tribunal MJ Allen, Member Date29 April 2005
PlacePerth
Decision The decision made on 11 November 2003, as confirmed on 26 March 2004, to determine the applicant’s percentage of incapacity in relation to civil employment as Class C with effect from 11 November 1977, is set aside. The matter is remitted to the respondent with a direction that the applicant is entitled to receive invalidity benefits from 11 November 1977 as a Class B recipient. ................. (sgd MJ Allen).................
Member
CATCHWORDS
Defence Forces – retirement benefits – decision made in 2003 regarding the applicant’s degree of incapacity for civil employment at the time of his discharge from the Army in 1977 – consideration of what categories of civil employment are applicable to the applicant – consideration of incapacity to undertake such civil employment – finding that the applicant’s incapacity was in the 35% - 40% range at the time of his discharge from the Army and the applicant is entitled to invalidity benefits as a Class B recipient – decision under review set aside
Defence Force Retirement and Death Benefits Act 1973 ss 26, 28, 30, 34
Re X and Defence Force Retirement and Death Benefits Authority (1980) 3 ALN N58
Re The Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services (1992) 111ALR 1, 39 FCR 225, 16AAR 566, 28 ALD 5
Defence Force Retirement and Death Benefits Authority v House (1989) 22 FCR 138
Military Superannuation and Benefits Board No.1 v Stanger [2002] FCA 671
REASONS FOR DECISION
29 April 2005 MJ Allen, Member 1. On 11 November 2003 the respondent made a decision under s 30 of the Defence Force Retirement and Death Benefits Act 1973 (“the Act”) to determine that the applicant’s percentage of incapacity in relation to civil employment with effect from 11 November 1977 was 10% and that, accordingly, the applicant should be classified Class C for the purposes of s 30. On 26 March 2004 that decision was confirmed upon reconsideration and the applicant now seeks review of the decision as confirmed.
2. At the hearing of the matter the applicant represented himself and the respondent was represented by Mr Dube, a solicitor with the Australian Government Solicitor’s office. The Tribunal received into evidence the documents filed pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“AAT Act”) in relation to the present proceedings (which I will refer to as T1 – T89 and S1 to S97) and Exhibits A1 – A6 tendered by the applicant and R1 – R6 tendered by the respondent. Exhibit R1 is a bundle of documents that were originally filed in the Tribunal pursuant to s 37 of the AAT Act in earlier proceedings involving the parties (proceedings No. W2002/399).
3. Oral evidence was given by the applicant and, on behalf of the respondent, by Dr I Synott, Dr A Musk, Dr B Kenny and Dr S O’Connell.
Background and Statutory Framework
4. The applicant was born in January 1956 and enlisted in the Australian Army on 8 August 1977. Within a very short time he experienced medical difficulties. A final medical board was convened on 24 August 1977 and the applicant was adjudged as medically unfit for further military service, and was to be discharged for that reason (T6 p10). The diagnosis of the applicant’s condition was stated to be “asthma induced by exercise” (T10 p15). The applicant was formally discharged from the Army on 10 November 1977 (T14 p22).
5. Section 26 of the Act provides that, subject to section 28, if a contributing member (such as the applicant) is retired on the ground of invalidity or physical incapacity to perform duties then the member is entitled on retirement to invalidity benefit in accordance with Part V of the Act.
6. Section 28 (1) of the Act relevantly provides that if a member is retired on the ground of invalidity or physical incapacity to perform duties within 1 year of becoming a member, and the respondent is satisfied that the invalidity or incapacity was caused, or was substantially contributed to, by a physical or mental condition that existed at the time when the member became a contributing member, and the condition was not aggravated, or was not materially aggravated, by the period of service, then the member is not entitled to an invalidity benefit.
7. It was accepted by the parties that sometime soon after his discharge from the Army the applicant made a claim for invalidity benefit under the Act but that the respondent made a decision under s 28(1) to refuse that claim. Although the applicant’s service records from that period are still available, the respondent informed the Tribunal that all records relating to the presumed decision under s 28(1) had been destroyed in accordance with archival policy (T15 p23).
8. In September 2001 the applicant requested that the respondent pay him an invalidity benefit from the time of his discharge on the basis that his condition at the time had been misdiagnosed. In May 2002 the respondent declined to grant the applicant an extension of time in which to request reconsideration of the decision presumed to have been made in 1977 under s 28(1) of the Act. That refusal to grant an extension of time was confirmed on reconsideration and the applicant subsequently appealed that decision to this Tribunal – which on 14 May 2003 set aside the respondent’s decision and allowed the extension of time.
9. On 26 September 2003 the respondent varied the presumed decision made under s 28(1) and determined that s 28(1) did not apply to the applicant and that, therefore, his invalidity classification would require determination under s 30 of the Act.
10. Section 30(1) relevantly provides that where a member becomes entitled to an invalidity benefit the respondent must determine the member’s “… percentage of incapacity in relation to civil employment and shall classify [the member] according to the percentage of incapacity as follows:
60% or more – Class A;
30% or more but less than 60% - Class B;
Less than 30% - Class C”
11. Section 30(2) relevantly provides that in determining the percentage of incapacity of a member for the purposes of s 30(1), the respondent “… shall have regard to the following matters only:
(a)the vocational, trade and professional skills, qualifications and experience of the member;
(b)the kinds of civil employment which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake;
(c)the degree to which the physical or mental impairment of the member that caused the invalidity or physical or mental incapacity because of which he or she was retired has or had diminished the capacity of the member to undertake the kinds of civil employment referred to in paragraph (b);
(d)such other matters (if any) as are prescribed for the purposes of this sub-section.”
12. Where a person has had his or her percentage of incapacity in relation to civil employment determined under s 30, the respondent may, in accordance with s 34 of the Act, from time to time reclassify the member in the classification categories referred to in s 30 according to the percentage of the member’s incapacity in relation to civil employment from time to time.
13. Having made the decision referred to in para. 9 above, on 11 November 2003 the respondent determined under s 30 of the Act that the applicant’s incapacity in relation to civil employment, with effect from 11 November 1977, was 10% and that he should therefore be classified Class C from that date. The applicant requested reconsideration of that decision but on 26 March 2004 the respondent affirmed the decision, whereupon the applicant made his application to this Tribunal.
Consideration
14. It can be seen from the above that the issue to be determined in these proceedings is the extent of the applicant’s incapacity in relation to civil employment as at 11 November 1977, that being the day immediately following the applicant’s discharge from the Army. Section 30(2) requires the respondent, and also this Tribunal, to have regard only to the factors (a) – (d) set out in that sub-section. It was common ground between the parties that no matters have been prescribed for the purposes of factor (d), and hence I must have regard to the factors (a) – (c).
15. Attempting to determine the degree of incapacity for civil employment at the time of a person’s discharge from the Army more than 25 years after the event will inevitably be difficult. What the applicant has in fact been able to do by way of civil employment since 1977 can be taken into account, but only to the extent that such evidence can be related back to and throw light on the applicant’s state of health and incapacity at the earlier date: see Re X and Defence Force Retirement and Death Benefits Authority (1980) 3 ALN N58. The Tribunal must, ultimately “… address the same question as was before the primary decision maker” in the decision under review – namely, what was the percentage incapacity of the applicant for civil employment in November 1977: see Re The Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services (1992) 111ALR 1, 39 FCR 225, 16AAR 566, 28 ALD 5 at [23].
(a) Skills, qualifications and experience
16. The evidence before me was that the applicant completed three years’ of secondary education up to the age of 15. He started work as an apprentice boat builder for approximately 6 months, and thereafter worked for approximately 2 years as an assistant manager for a distributor and manufacturer of yachts; for approximately 2 years as a travelling salesman selling sporting goods to retailers; and for approximately 1 year as a purchasing clerk for a wholesale hardware store. For a few weeks prior to joining the Army he worked as a labourer whilst waiting for his enlistment to commence. In addition, the applicant’s father was an earthmoving contractor and the applicant said that from about the age of 12 years he had been taught how to drive the heavy machinery and for many years prior to his enlistment in the Army he had frequently worked with his father on week-ends and holidays and when he was not otherwise working, driving heavy equipment. When he was old enough he obtained the relevant licences to allow him to operate that machinery.
17. Prior to his enlistment the applicant did a short course on sales and marketing and spent some time studying book-keeping and accountancy after hours.
18. After his discharge from the Army the applicant had many and varied jobs, none of them lasting for any long period of time. He has had limited experience as a truck driver, and a hardware salesman, as a labourer, bar man, plant operator with an earthmoving company and commercial traveller. The majority of his employment has been as a sales representative for businesses selling boats and other marine equipment.
19. There is no material dispute between the parties in relation to this issue and I find that the above represent the vocational, trade and professional skills, qualifications and experience of the applicant.
(b) Kinds of civil employment
20. Although it was considering the provision in s 34 of the Act that corresponds to s 30(2)(b), the Full Federal Court decision of Defence Force Retirement and Death Benefits Authority v House (1989) 22 FCR 138 provides guidance as to the correct approach to the interpretation of the latter provision. At [9] the Court said that the provision requires consideration
“… not of employment the member has followed or would be likely to follow, but of the kinds of civil employment which a person with the skills, qualifications and experience identified in para (a) might reasonably undertake. The words ‘kinds’, ‘might’ and ‘reasonable’ all indicate that a narrow view is not to be taken … an individual is likely to have open to him a wide range of employment opportunities of various kinds. The sub-section does not narrowly scrutinise one example of the kinds of employment open in particular circumstances. For example, if a man can operate a back hoe, it would be wrong to think of back hoe operation as the kind of employment open to him – it is rather a specific example of a kind of employment which includes the operation of post hole diggers and a host of other pieces of equipment.”
21. At [10] the Court observed that “… the primary question posed by paragraph (b) is not what an employer might do, nor even what the particular member might do, but what a hypothetical person with the relevant skills, qualifications and experience ‘might reasonably undertake’.”
22. At [11] the Full Court said that “One thing which is abundantly clear is that paragraph (b) does not restrict a member to the employments in which he is now engaged in his impaired state. That would be to mock the statutory purpose, which is to find an objective criterion for the assessment of the extent of impairment. The criterion is a broad one which relates to categories of employment, and not to particular occupations. It is concerned with the range of occupations open to the person described, so that the effect of the disability may be measured against the opportunities that might have been open”.
23. When it made its initial determination in November 2003 under s 30 of the applicant’s degree of incapacity for civil employment in 1977, the respondent determined that the applicant’s “… very brief period of Army service as a recruit could not form the basis of any relevant civil employment category and on the basis of what [the applicant] had done prior to his service, agreed that the singular relevant type of civil employment for assessment purposes was sales representative.” (T p 168).When reconsidering that decision in March 2004 the respondent considered but rejected the suggestion that employment categories of plant operator and labourer be included, and concluded that only the category of sales representative should be accepted.
24. In a Statement of Facts and Contentions filed in these proceedings prior to the hearing, and in written submissions tabled at the hearing, it was contended on behalf of the respondent that the appropriate employment classifications were those of sales representative and labourer (Statement of Facts and Contentions para. 38, Outline of Submissions para. 21).
25. However, in his closing submissions at the hearing Mr Dube for the respondent acknowledged that, on the evidence, the category of plant operator might well be reasonably available (transcript, p P135). I agree with that position in the light of the applicant’s evidence of the work that he did with his father, including the holding of relevant earth moving equipment licences, and bearing in mind that after his discharge from the Army he worked for a relatively short period with an earth moving company.
26. Accordingly, having regard to the above, I consider that in November 1977 the hypothetical person with the skills, qualifications and experience that the applicant had, as described above, might reasonably be expected to undertake employment in the categories of sales representative, labourer and plant operator.
(c) The diminished capacity to undertake employment
27. Having regard to the wording of s 30(2) it is necessary for the Tribunal to consider and determine three matters. The first is to determine the invalidity, or physical or mental incapacity, by reason of which the applicant was discharged from the Army. The second is to determine the physical or mental impairment that caused that invalidity, or physical or mental incapacity. The third is to determine the degree to which that physical or mental impairment has diminished the applicant’s capacity to undertake the kinds of civil employment that I have found might have reasonably been undertaken by a person such as the applicant.
28. In the present case there was no dispute between the parties that the applicant experienced problems very soon after his admission to the army. On 16 August 1977 the applicant attended for medical attention and the notation made by the private who examined him (T4 p8) recorded that he complained of asthma. A notation was made that on examination the applicant’s chest was clear, but that he “got vertigo from the deep inhaling”. The applicant was noted as fit for restricted duties for 1 day, with the restrictions noted as “no PT, sport, running, or [strenuous] drill”. Although that document records that the applicant was to be seen by a medical officer on 17 August no record exists to indicate that he did. However, the applicant was seen for a further medical attendance on 22 August 1977 by a medical practitioner, (Major Rope) who recorded (T5 p9) a diagnosis of “asthma on exercise” and the applicant was assessed as being not fit for duty with the notation “for medical discharge”. He was admitted to hospital on that day and underwent a final Medical Board on 24 August 1977. On examination by that Board it was noted that the applicant had two conditions. The first was a “scleroderma type rash on the right ankle” and the second was “exercise induced asthma”. A “Pulheems” examination conducted on 24 August 1977 graded the applicant as 8 in relation to physical capacity, which is the lowest possible grade and which indicates the person is medically unfit for any form of service (see T p14 and Exhibit R 6),
29. The applicant was seen by a dermatologist on 24 August 1977 in relation to the rash on his right foot, which was considered symptomless and required no therapy (Exhibit R1, p14). I am satisfied that this condition played no part in any incapacity that the applicant suffered at the time of his discharge from the Army.
30. The T documents at pages 18 and 19 indicate that the applicant sought further medical attention on 30 August and 5 September 1977. He was diagnosed with pain in the right chest with coughing up of phlegm on the first occasion and continued “asthmatic symptoms” on the second occasion. He was judged not fit for duties with the notation “no marching especially”.
31. It was not in dispute, and I am satisfied, that the applicant’s discharge from the Army was based upon his incapacity to undertake any form of physical exertion – such as marching or strenuous drill work or other activity involved in his Army recruit training. I conclude that the shortness of breath and wheezing on exertion and the consequential inability to engage in strenuous exercise constituted the incapacity which caused the applicant to be unable to perform his duties and was the incapacity because of which he was retired from the Army.
32. The second matter to be determined is what was the physical or mental impairment that caused the applicant’s incapacity. It is apparent from the brief description of the events of 1977 set out above that at the time the diagnosis of the applicant’s condition was that he suffered from asthma induced by exertion. That remained the position until 1990 when the applicant made a claim for compensation and his position was reviewed by a number of specialist medical practitioners. A summary of the opinions expressed at that time is set out in the respondent’s Statement of Facts and Contentions. By 1991 it was accepted (for the purposes of the compensation claim) from the medical opinions expressed at that time that the asthma experienced by the applicant in 1977 was only a temporary aggravation of the condition but that anxiety induced hyperventilation syndrome (“AIHS”) was a more accurate description of the physical or mental impairment that was the cause of the invalidity or incapacity that caused the applicant’s discharge from the Army,
33. Although s 30(2) speaks of the impairment that caused the invalidity or incapacity because of which the member was retired, there is no reason in principle why experts such as medical practitioners cannot revise an initial description of a condition if later information justifies such a review: See Military Superannuation and Benefits Board No.1 v Stanger [2002] FCA 671 per Kiefel J at [25].
34. I am satisfied, on the basis of the medical evidence referred to, that the description of the applicant’s impairment in 1977 as being “asthma” was not a full and correct description of the impairment that caused the incapacity as a result of which he was retired from the Army. I am satisfied that AIHS is a more accurate description of that impairment.
35. The next issue that I must address, and the issue that was the principal point of contention in the proceedings, is the degree to which the impairment referred to above diminished the applicant’s capacity, in November 1977, to undertake the kinds of civil employment that I have found to be applicable to him. The lack of contemporaneous medical evidence necessarily means that it is necessary to consider later medical opinions about the applicant’s presentation in later years and to relate that back to the nature and the extent of his condition in 1977.
36. I have noted above the records that do exist concerning the assessments made of the applicant at the time of his Final Medical Board examination and shortly thereafter in 1977. The Board considered that the asthma from which it considered the applicant to suffer caused a percentage incapacity of 10%, and that the composite assessment of the applicant’s “incapacity for general labour market” was 10% (T10 p15).
37. I note that on the applicant’s enlistment (in July 1977) he scored categories 1 or 2 on all the Pulheems categories, indicating that he had average or above average functional capacity, full combat capacity and no climatic restrictions. That remained his classification under the Pulheem’s system on discharge, other than his classification of 8 in respect of physical capacity: see T3 p6 and Exhibit R6.
38. Apart from the entries relating to the applicant’s medical attendances on 30 August 1977 and 5 September 1977 referred to above, several other records exist from September 1977. On 7 September the applicant reported chest pains lasting up to half an hour, but his chest was clear on examination (R1 p25). On 14 September the applicant reported pain in his left thumb for 4 days and was found to have a full range of movements of the thumb joints (R1 p26). On 26 September 1977 the applicant reported that he had swollen feet from his bus trip from the eastern states to Perth.
39. In his oral evidence the applicant said that he was a good sportsman before joining the Army and that he was very fit when he enlisted. He said that his regular sporting activities were sailing, football, rugby and skin diving.
40. It was not in dispute that the applicant had many jobs and many periods when he did not work after 1977. Exhibit A5 sets out 18 different positions held by the applicant after 1977 to approximately 1990, most of which were as a truck driver, sales representative, barman, labourer or plant operator. In his report of 8 August 1990 (T19) Dr Musk set out a history of employment given by the applicant to him, but the applicant said that that was not entirely correct in that the jobs specified had not been put in chronological order. The applicant said that at the hearing of his claim for compensation under the applicable legislation at this Tribunal in late 2002 (in proceedings W2001/70), he and the presiding member at that hearing (Senior Member Dwyer) had spent a considerable time trying to sort out the sequence of his employment - and that the history set out in paras 18 – 31 of the decision of the Tribunal dated 14 January 2003 in those proceedings (S77 to S81) was an accurate reflection of his work history at the time. The applicant added that he had also spent very short periods of time working as a plant operator for his father, and as a plant operator for another company (Croker Earthmoving) for about 3 weeks. These jobs had involved driving loaders or water trucks or machinery of that kind.
41. The applicant described many symptoms that he said he suffered from (see for example, the first page of Exhibit A1) and said that there was rarely a day since his discharge from the Army on which he did not suffer from at least some of the symptoms.
42. The applicant said that he had over time learned techniques to avoid anxiety when he was working, such as making excuses to leave a customer or to pull over to the side of the road if his job involved driving.
43. In his report of August 1990 (T19) Dr Musk (who is a physician in respiratory medicine) reported (at paras 6 – 9) that the applicant should not work at any job where he is exposed to conditions that may cause aggravation of his asthma (such as exposure to allergens or freezing cold air) or that involves strenuous exertion – but he could engage in mild to moderate exertion. He judged the applicant to be capable of undertaking the job of sales representative subject to having adequate medication for asthma and hay fever and adequate counselling on the management of hyperventilation. Dr Musk reported in similar terms in his December 1990 report (T27), stating that he did not believe the applicant could return to the Army and noting that the applicant had “… held a number of jobs which he is capable of performing, but which he lost because of his ongoing emotional/psychological problems”. Dr Musk also noted the applicant would benefit from ongoing counselling and efforts to retrain and rehabilitate him.
44. In his oral evidence Dr Musk said that his main focus when seeing the applicant was to establish whether he suffered from asthma. He said that in retrospect it was “a strong possibility that there was at least a large component of anxiety hyperventilation” present in 1977, as well as some temporary aggravation of asthma. Although he said that he did not think he was the right person to express an opinion about whether an anxiety condition could have been disabling many years previously, Dr Musk said that in his medical experience such a condition “… could be incapacitating and it seems to me probably was”.
45. In his October 1994 report (T41) Dr Kenny, who is a consultant psychiatrist, expressed the view that the 1977 incident that led to the applicant’s discharge from the Army had little to do with asthma, and that it was a hyperventilation/panic episode – which is a condition that is commonly misdiagnosed and not treated early. Dr Kenny said (Tp78) that he had little doubt that the applicant’s “… continuing panic disorder contributed greatly to his insecurity during his employment and earlier years after his discharge from the Army, and even now it contributes to his reduced earning and work capacity”. He said (Tp78) that the applicant’s “ … permanent incapacity is quite high in that he is very restricted in what he does and lives a very restricted life because of his symptoms …”. At Tp79 Dr Kenny said that the applicant “… has led a restricted life since the time of his discharge because of his symptoms, and having modified his life to avoid the symptoms he does not experience any great distress. It is likely his symptoms have limited his life.”
46. In his oral evidence Dr Kenny agreed that his assessment in 1994 had been based upon the history given to him by the applicant. He also expressed the view that if the applicant’s impairment in 2004 was approximately the same as his degree of impairment in 1994, then it was unlikely that his condition would have been significantly less in 1977. Dr Kenny said that in his opinion it was necessary to see a person such as the applicant in person and that it was not possible to make an assessment about their degree of disability of a person just by examining the papers.
47. In a report of December 1995 (Exhibit A1) Dr O’Connell, who is also a consultant psychiatrist, said that the applicant had “… suffered, since 1977, from ongoing panic attacks, agoraphobia and that this is his main diagnosis. As well as this he still suffers attacks of hyperventilation as well. He has suffered from a chronic anxiety disorder since 1977 …”. Dr O’Connell said that the applicant’s symptoms, which emerged from the 1977 incident, had continued since that time and that they “… have seriously affected his life and have been probably the main contributing factors for his having had so many jobs – he estimates he has had about 40 jobs since discharge from the Army and he is unable to work now”.
48. In his oral evidence Dr O’Connell said that people vary greatly in their ability to cope with anxiety conditions of the kind that the applicant had, but he had no reason to doubt the ongoing difficulties that the applicant had experienced over the years. Although he did not know how the 10% disability had been assessed in 1977, Dr O’Connell thought that, in view of the fact that the applicant had been discharged from the Army, the assessors at that time must have thought that he was in quite “a bad way”. If the 10% had been based on the perception at the time that the applicant suffered only from asthma, then it was possible that a higher degree of incapacity would be arrived at if the anxiety condition had been properly diagnosed and added to the assessment factors at the time. A diagnosis of AIHS in combination with asthma in 1977 would have made it harder for the applicant to work and resulted in a greater degree of incapacity, but it was very hard for him to say what that percentage should have been in 1977.
49. In a report of February 2004 Dr Synott, who is also a consultant psychiatrist, said that he had reviewed all the documentation available up to that time concerning the applicant and concluded that there was insufficient contemporaneous information to support the claim that the applicant had AIHS at the time of his discharge from the Army, and that it was “possible” that the applicant developed, or had a dramatic increase in, symptoms of anxiety after his discharge. He said that he had insufficient information to comment regard “the effect of impairment and/or its treatment upon general, physical, neuro cognitive, sensory and/or psychological functioning”. On the information that he did have, Dr Synott thought that the applicant’s capacity to undertake employment as a sales representative at the end of 1977 would have been diminished in only a minimal degree ie by less than 10%.
50. In his oral evidence Dr Synott said that he did not accept that the applicant had AIHS in late 1977 or during the 1980s and he could not say what had happened to the applicant in the period from 1977 to about 1990. He could not say either way whether an assault that the applicant had suffered in 1989 had been a major contributing factor to any onset or exacerbation of his anxiety.
51. Once again the decision of the Full Federal Court in House (supra) is relevant to the issue of how the determination of the percentage of incapacity is to be assessed in the context of s 30. The Full Court at [15] referred to the comments of Davies J in Re Thompson and Defence Force Retirement and Death Benefits Authority (1987) 6 AAR 424 at 433:
“… the width of the range in employment opportunity is only one of the matters to be taken into account. The quality and nature of the range is another. Moreover, a particular impairment may indeed not greatly reduce the range of employment opportunities, but it may preclude the person from working more than part time or intermittently. Thus, the determination of a percentage of incapacity is not to be undertaken as if it were a mathametical calculation. Rather it is a value judgment of the extent to which, expressed in percentage terms, and taking into account only the matters set out in s 34(1)(A), a person has suffered incapacity to engage in civil employment brought about by a prescribed physical or mental ailment”.
52. In my opinion, the evidence referred to above supports the applicant’s evidence that after his discharge from the Army he was substantially incapacitated in relation to civil employment. To the extent that Dr Synott was not convinced that the applicant suffered from AIHS at the time of his discharge I prefer the evidence of the other medical practitioners that he did, because of their earlier connection with the applicant. I note also such a conclusion is consistent with the position taken (albeit by another Commonwealth agency) in relation to the applicant’s compensation claim and, indeed, taken by the respondent in the present proceedings – see para 25 of the respondent’s Outline of Submissions. Although he may have been capable of undertaking employment as a sales representative, labourer or plant operator - in the sense that he was physically capable of performing the duties required of a person engaged in such employment - the evidence demonstrates to my satisfaction that the applicant was incapable of performing those duties other than intermittently; that he experienced panic and anxiety attacks at times when he tried to perform them; and that he was in a poor condition to keep such jobs when he was able to obtain them. I agree with the assessment of this Tribunal in January 2003 in proceedings W2001/70 at [37] that the applicant tried hard to find employment that he could perform in the years after his discharge from the Army, but that his AIHS meant that he was fitted only for work which did not provoke his anxiety and that tasks such as driving, dealing with customers, working in confined spaces or using lifts, or coping with pressure of any sort, provoked his anxiety. Further, because his AIHS interfered with his sleep he was not fitted for employment which required punctuality and that because of the anxiety his responses to reprimands or perceived injustices were often inappropriate.
53. It is, however, apparent that the applicant was able to obtain a significant number of jobs over the years even though he was unable to keep many of them for extended periods. Towards the end of the 1980s he was able to work for long periods on commission selling boats. He was, ultimately, not able to receive workers compensation for those periods because of the extent of his earnings, but I accept the applicant’s evidence that he was, nevertheless, unable during those periods to work extended hours, and that his earnings were therefore less than they might have been had he been able to work to the full extent.
54. The applicant’s inability to work in jobs that involved anything more than mild or moderate physical exertion and that involved exposure to allergens such as dust meant, in my opinion, that his incapacity in relation to the employment categories of labourer and plant operator was greater than in relation to employment as a sales representative.
55. As was noted above, the assessment of a degree of incapacity of a person so many years after the relevant period is inevitably difficult. Even when the passage of time is not a particularly material factor the assessment is, as Davies J noted in Re Thompson (supra), a value judgment expressed in percentage terms. Having regard to the above, I consider that the incapacity of the applicant in relation to employment as a sales representative was primarily a function of his inability to keep jobs once he had obtained them, and his ability to work only intermittently or part time. I assess his incapacity in relation to work as a sales representative as being in the range of 20% – 25%. His incapacity for work as a labourer or plant operator is greater than that – because for those categories there is the additional problem that they involve greater degrees of physical exertion and they potentially expose him to an environment in which they could provoke anxiety attacks. Although the categories of labourer and plant operator are broad ones, which encompass a wide range of possible types of work and many and varied environments, I am satisfied that the applicant’s degree of incapacity for those kinds of employment should be judged to be (using the categories referred to in the respondent’s Statement of Facts and Contentions at para. 13) at the upper end of the moderate range ie the upper end of a range of 30% - 60%.
56. Having regard to the varying degrees of incapacity referred to above, and bearing in mind that this is not a mathematical calculation but is, rather, a value judgment, I consider that the applicant’s overall incapacity as at November 1977 and in the years following for the 3 types of civil employment referred to above taken together, was in the range of 35% - 40%. If a single percentage figure is required for the purposes of the Act then I would nominate, admittedly somewhat arbitrarily, the mid-point of that range i.e. 37.5%. It follows that the applicant’s classification for the purposes of s 30 was Class B. Accordingly, the decision under review to determine the applicant’s percentage of incapacity as 10% and to classify him Class C with effect from 11 November 1977 is set aside and the matter is remitted to the respondent with a direction that the applicant is entitled to receive invalidity benefits from 11 November 1977 on the basis of a Class B classification.
I certify that the 56 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M Allen, Member
Signed: …………(sgd Nigel Wee) …………
AssociateDate/s of Hearing 31 August 2004 and 5 October 2004
Date of Decision 29 April 2005
Counsel for the Applicant Self Represented
Counsel for the Respondent Mr Benjamin Dube
Solicitor for the Respondent Ms Briony Eales
Australian Government Solicitor
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